PALM BEACH COUNTY PLANNING, ZONING AND BUILDING DEPARTMENT ZONING DIVISION ZONING COMMISSION VARIANCE STAFF REPORT 03/03/2011

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1 PALM BEACH COUNTY PLANNING, ZONING AND BUILDING DEPARTMENT ZONING DIVISION ZONING COMMISSION VARIANCE STAFF REPORT 03/03/2011 APPLICATION NO. CODE SECTION REQUIRED PROPOSED VARIANCE ZV D.1.C Property Development Regulations Minimum Lot Size in the Community Commercial (CC) Zoning District 1.00 acre 0.69 acre 0.31 acre SITUS ADDRESS: 8826 Lantana Rd Lake Worth AGENT NAME & ADDRESS: Jeff Brophy Land Design South, Inc. 400 Columbia Dr. Ste 110 West Palm Beach, FL OWNER NAME & ADDRESS: Jin Y H and Young S Chung 861 Forest Glen Ln Wellington, FL PCN: ZONING DISTRICT: General Commercial (CG) BCC DISTRICT: 03 PROJECT MANAGER: Carol Glasser, Site Planner II LEGAL AD: ZV Title: Resolution approving a Type II Zoning Variance application of Jin Chung by Land Design South, Inc., Agent. Request: to allow a reduction in minimum lot size for the Community Commercial (CC) Zoning District General Location: South side of Lantana Road, east of Lyons Road. (US MARSHAL ARTS ACADEMY) ( ) LAND USE: Commercial Low, with an underlying S/T/R: units per acre (CL/2) CONTROL #: LOT AREA: 0.69 acres +/- LOT DIMENSIONS: Irregular: feet of frontage; feet along the rear property line; 100 feet in width; 285 feet in depth CONFORMITY OF Illegal lot of record (not CONFORMITY OF N/A LOT: a nonconforming lot) ELEMENT: TYPE OF ELEMENT: N/A ELEMENT SIZE: N/A BUILDING PERMIT #: N/A NOTICE OF VIOLATION: N/A CONSTRUCTION STATUS: N/A APPLICANT REQUEST: to allow a reduction in minimum lot size for the Community Commercial (CC) Zoning District ZC 03/03/2011 Page 385

2 STAFF SUMMARY This application precedes application Z requesting to allow a rezoning from the General Commercial (CG) Zoning District to the Community Commercial (CC) Zoning District. The applicant proposes a Fitness Center use (Karate Studio) consisting of 5,000 square feet. If the Zoning Commission approves this variance and the Board of County Commissioners (BCC) approves the rezoning to the CC Zoning District, then the applicant intends to submit a site plan with the building permit application (a 5,000-square foot building is under the threshold requiring Development Review Officer (DRO) approval per Table 4.A.3A), and plat the parcel. TYPE II ZONING VARIANCE REQUEST The applicant requests a Type II Variance from 3.D.1.C Property Development Regulations Minimum Lot Size. The miminum lot size is 1.0 acre in the Community Commercial (CC) Zoning District. The subject site is 0.69 acre. The applicant requests to allow a reduction in lot size of acre for the CC Zoning District. GENERAL LOCATION, PREVIOUS APPROVALS AND EXISTING CONDITIONS The vacant 0.69-acre site is located on the south side of Lantana Road east of Lyons Road. Ingress/egress will be from 1 access point on Lantana Road. On July 15, 1971, the BCC approved Resolution R for a rezoning from the A-1 Agricultural District to the C-2 General Commercial District for the subject site and the parcels adjacent to the east and the west. On April 26, 1973, the BCC denied a request for a rezoning via Resolution R , from the CG and Agricultural (AG) Districts to the Industrial Light Zoning District for the subject site and the parcels adjacent to the south, east, and west. The subject site is not a legal lot of record as required by Art. 2.F.2.A. Nonconforming Lot Legal Lot of Record. The subject site is a vacant/undeveloped parcel that was not included with any of the development orders for the adjacent parcels to the west in 1971 and 1985, the east in 1974 and 2008, and the south in The applicant could not provide a deed prior to February 5, 1973 describing the subject site in its current configuration. The subject site is not shown in the 1989 Palm Beach County Future Land Use Atlas adopted August 31, COMPATIBILITY WITH SURROUNDING LAND USES NORTH FLU: Low Residential, 2 units per acre (LR-2) Zoning District: Residential Single Family (RS) Supporting: Place of Worship (Lakes of Sherbrooke, Control No ) SOUTH FLU: Zoning District: Supporting: LR-2 Planned Unit Development (PUD) Single Family residences (Golf Club Estates, aka San Messina, Control No ) EAST FLU: Commercial Low, with an underlying 2 units per acre (CL/2) Zoning District: Multiple Use Planned Development (MUPD) Supporting: Warehouse (Thurman A. Pearce, Control No ) approved for commercial (Merchants Walk, Control No ) WEST FLU: Zoning District: Supporting: CL/2 General Commercial (CG) Automobile Service Station, Convenience Store with Self-Service Pump Island Facilities (Farm Stores, Control No ) ZC 03/03/2011 Page 386

3 A Fitness Center use would not create an incompatibility with the civic use to the north across the 110-foot wide Lantana Road right-of-way (ROW). A 20-foot wide ROW buffer would be required along the Lantana Road frontage for any use except a single-family or Zero Lot Line residential use. Nor would any incompatibility be created with the existing warehouse use or the approved commercial MUPD development to the east or with the existing convenience store with gas sales to the west. A 5-foot wide compatibility buffer would be required along the east and west property lines. The proposed use will not create an incompatibility with the adjacent uses to the north, east, and west. Staff cannot provide a thorough analysis of compatibility with the San Messina community abutting the south property line without a Preliminary Site Plan. The applicant will not be required to submit a site plan if this variance request is granted. Incompatibility issue(s) may arise from the proposed use given that the lot is one-third smaller than the minimum lot size required for the requested zoning district. Figure 1 Aerial ZC 03/03/2011 Page 387

4 Figure 2 Survey dated December 13, 2010 ZC 03/03/2011 Page 388

5 FINDINGS OF FACT On November 24, 2003, the BCC adopted Ordinance No pursuant to County-initiated Large Scale Future Land Use Atlas Amendment to change Commercial (C) land uses to either Commercial Low or Commercial High. The accompanying staff report for this amendment (LGA ) recommended that the Commercial with an underlying 2 units per acre (C/2) land use for 7.23 acres of land be amended to Commercial Low with an underlying 2 units per acre (CL/2). The amendment included the Gas Station/Convenience Store and Warehouse uses to the east and west of the subject site and the vacant/undeveloped subject site. This area was determined to be ineligible for the Commercial High (CH) FLU designation. Thus, the subject site s existing CG Zoning District is inconsistent with the new CL/2 FLU designation. The applicant purchased the subject site on February 17, 2010 (ORB PG 416) The subject site must be rezoned to a Zoning District consistent with its CL land use designation. The Commercial Neighborhood (CN), Community Commercial (CC), Commercial Low Office (CLO), and Infill Redevelopment (IR) Zoning Districts are all consistent with the CL FLU, per Table 3.C.1.A FLU Designation and Corresponding Zoning District The subject site does meet the minimum property development regulations for the CN and the IR Zoning Districts in Table 3.D.1.A. The subject site does not meet the minimum lot size for its existing CG Zoning District, the proposed CC Zoning District, or the CLO Zoning District per Table 3.D.1.A. Commercial Neighborhood (CN) Zoning District The subject site is 0.69 acre in size. The CN Zoning District requires a minimum lot size of 0.5 acre. A Fitness Center use is a Class B Conditional use in the CN Zoning District and is limited to a maximum of 3,000 square feet of gross floor area (GFA). The CN Zoning District is to provide a limited commercial facility of a convenience nature, serving residential neighborhoods within a ½ mile radius, located on a local, collector or arterial street. Infill Redevelopment (IR) Zoning District The IR Zoning District does not have a minimum lot size to encourage infill and redevelopment in the U/S Tier. New development is subject to the requirements of the Infill Redevelopment Overlay (IRO). A Fitness Center use is allowed on a parcel with a CL land use designation subject to Development Review Officer (DRO) approval per Table 3.B.15.F IRO Permitted Use Schedule. GFA is not limited for the proposed use. Compatibility issues are addressed through the IRO s General Design Standards, Development Standards, and Building Standards. ZC 03/03/2011 Page 389

6 STAFF RECOMMENDATIONS Staff recommends denial, based upon the following application of the standards enumerated in Article 2.B.3.E of the Palm Beach County Unified Land Development Code (ULDC), which an applicant must meet before the Zoning Commission who may authorize a variance. ANALYSIS OF ARTICLE 2.B, SECTION 3.E. VARIANCE STANDARDS 1. SPECIAL CONDITIONS AND CIRCUMSTANCES EXIST THAT ARE PECULIAR TO THE PARCEL OF LAND, BUILDING OR STRUCTURE, THAT ARE NOT APPLICABLE TO OTHER PARCELS OF LAND, STRUCTURES OR BUILDINGS IN THE SAME ZONING DISTRICT: NO. The subject site is a portion of a General Commercial (CG) parcel. The subject site remained undeveloped as development orders were approved for the adjacent parcels to the east, west, and south. On November 24, 2003, the BCC adopted Ordinance No pursuant to Countyinitiated Large Scale Future Land Use Atlas Amendment to change Commercial (C) land uses on approximately 74 commercially designated parcels collectively totaling approximately acres to either Commercial Low or Commercial High. The fact that the site s FLU was amended from the Commercial land use designation is not a special circumstance. The fact that the subject site must be rezoned to be consistent with its CL FLU designation is not a special circumstance. All new development must be consistent with the Future Land Use Atlas of the Plan. The subject site does not meet the minimum lot size for its existing CG Zoning District, the proposed CC Zoning District, or the CLO Zoning District per Table 3.D.1.A. However, the subject site does meet the minimum property development regulations for the CN and the IR Zoning Districts in Table 3.D.1.A. Commercial Neighborhood (CN) Zoning District The subject site is 0.69 acre in size. The CN Zoning District requires a minimum lot size of 0.5 acre. A Fitness Center use is a Class B Conditional use in the CN Zoning District and is limited to a maximum of 3,000 square feet of gross floor area (GFA). The CN Zoning District is to provide a limited commercial facility of a convenience nature, serving residential neighborhoods within a ½ mile radius, located on a local, collector or arterial street. Infill Redevelopment (IR) Zoning District The IR Zoning District does not have a minimum lot size to encourage infill and redevelopment in the U/S Tier. New development is subject to the requirements of the Infill Redevelopment Overlay (IRO). A Fitness Center use is allowed on a parcel with a CL land use designation subject to Development Review Officer (DRO) approval per Table 3.B.15.F IRO Permitted Use Schedule. GFA is not limited for the proposed use. Compatibility issues are addressed through the IRO s General Design Standards, Development Standards, and Building Standards. 2. SPECIAL CIRCUMSTANCES AND CONDITIONS DO NOT RESULT FROM THE ACTIONS OF THE APPLICANT: NO. The applicant purchased the subject site on February 17, 2010 (ORB PG 416). The effective date of the Code is January 1, Applications submitted after the effective date of the Code are reviewed in accordance with the standards and provisions of the Code, which includes Table 3.C.1.A FLU Designation and Corresponding Standard Zoning District indicating that the subject site must be rezoned; Table 3.D.1.A, Property Development Regulations indicating that a minimum of 1 acre is required in the CN Zoning District; and, Art. 4.B.1.A.56 Fitness Center wherein a Karate school is specifically defined as a Fitness Center use. The applicant s options to develop the 0.69-acre parcel for a Fitness Center use are clearly indicated in the Code in the CN or IR Zoning District. 3. GRANTING THE VARIANCE SHALL NOT CONFER UPON THE APPLICANT ANY SPECIAL PRIVILEGE DENIED BY THE COMPREHENSIVE PLAN AND THIS CODE TO OTHER PARCELS OF LAND, BUILDINGS OR STRUCTURES IN THE SAME ZONING DISTRICT: NO. A special privilege will be conferred upon the applicant if a variance from minimum lot size is granted. ZC 03/03/2011 Page 390

7 The applicant wishes to construct a 5,000-square foot Fitness Center use (Karate Studio). A Fitness Center use is restricted in Art. 4.B.1.A.56 to a maximum of 3,000 square feet in the CN Zoning District and the Zoning Commission does not have the authority to grant a Type II Variance from Art. 4 Use Regulations. Therefore, applicant is seeking to construct the proposed 5,000-square foot fitness center by requesting a standalone Type II Variance to allow a 0.69-acre parcel in the CC Zoning District. The applicant can reasonably develop the subject site for a fitness center use in either the CN Zoning District or the IR Zoning District without the need for a standalone Type II Variance. 4. LITERAL INTERPRETATION AND ENFORCEMENT OF THE TERMS AND PROVISIONS OF THIS CODE WOULD DEPRIVE THE APPLICANT OF RIGHTS COMMONLY ENJOYED BY OTHER PARCELS OF LAND IN THE SAME ZONING DISTRICT, AND WOULD WORK AN UNNECESSARY AND UNDUE HARDSHIP: NO. The applicant can develop the vacant commercial parcel without the need for a standalone Type II Variance request from minimum lot size in the CC Zoning District. The parcel meets the minimum lot size in both the Neighborhood Commercial (CN) and Infill Redevelopment (IR) Zoning Districts, which are also consistent with the site s CL/2 FLU designation. 5. GRANT OF VARIANCE IS THE MINIMUM VARIANCE THAT WILL MAKE POSSIBLE THE REASONABLE USE OF THE PARCEL OF LAND, BUILDING OR STRUCTURE: NO. The applicant can develop the vacant commercial parcel for a Fitness Center use without the need for a standalone Type II Variance request from minimum lot size. The parcel meets the minimum lot size in both the Neighborhood Commercial (CN) and Infill Redevelopment (IR) Zoning Districts, which are also consistent with the site s CL/2 FLU designation. 6. GRANT OF THE VARIANCE WILL BE CONSISTENT WITH THE PURPOSES, GOALS, OBJECTIVES, AND POLICIES OF THE COMPREHENSIVE PLAN AND THIS CODE: NO. The intent of Table 3.D.1.A Property Development Regulations is to establish minimum lot dimensions, minimum and maximum density, maximum Floor Area Ratio, maximum building coverage, and minimum setbacks in each standard zoning district. The purposes of the aforementioned regulations are to ensure that development minimizes any potential adverse impacts on surrounding properties within the County, and to ensure compliance with Florida Statutes by implementing and complying with the policies and procedures of the Comprehensive Plan. Grant of the variance will circumvent ULDC provisions for Nonconformity and Legal Lot of Record regulations that address lots that were lawfully established before the Code was adopted or amended that now do not conform; Property Development Regulations; and, to discourage the illegal subdivision of land. Grant of this variance will circumvent the Code to establish a Fitness Center use for either a Class B Conditional use approval or the minimum threshold for DRO review of a site plan. A Fitness Center use is a Class B Conditional Use in the CN Zoning District and the use would be restricted to a maximum of 3,000 square feet. A Fitness Center use less than 15, 000 square feet is permitted by right in the CC Zoning District, but the minimum lot size in the CC Zoning District is twice the size required of the CN Zoning District. DRO review of the proposed site plan would be required If the Fitness Center is proposed in the IR Zoning District, 7. THE GRANT OF THE VARIANCE WILL NOT BE INJURIOUS TO THE AREA INVOLVED OR OTHERWISE DETRIMENTAL TO THE PUBLIC WELFARE: NO. As proposed, grant of the standalone Type II Variance would allow a building 2,000 square feet larger than the maximum building size for a Fitness Center in the CN Zoning District to be permitted by right ZC 03/03/2011 Page 391

8 on a lot one-third smaller than the required minimum lot size without DRO review of the site plan and with the same 30-foot rear setback from the property line abutting the residential use to the south. ZC 03/03/2011 Page 392

9 Staff recommends denial of the Type II Variance. If the Zoning Commission approves the Type II Variance, then staff recommends approval subject to the conditions of approval in Exhibit C. EXHIBIT C Type II Variance - Standalone ZONING COMMISSION CONDITIONS ENGINEERING 1. Prior to April 28, 2012, the property owner shall create the lot legally in accordance with Article 11. (DATE: MONITORING - Eng) VARIANCE 1. The Develpment Order for this variance shall be tied to the Time Limitations of the Development Order for Z (ONGOING: MONITORING - Zoning) 2. At time of application for a building permit, the property owner shall provide a copy of this variance approval to the Building Division. (BUILDING PERMIT:ZONING-Zoning) 3. In granting this approval, the Board of County Commissioners relied upon the oral and written representations of the property owner/applicant both on the record and as part of the application process. Deviations from or violation of these representations shall cause the approval to be presented to the Board of County Commissioners for review under the compliance condition of this approval. (ONGOING: MONITORING - Zoning) 4. Failure to comply with any of the conditions of approval for the subject property at any time may result in: a. The issuance of a stop work order; the issuance of a cease and desist order; the denial or revocation of a building permit; the denial or revocation of a Certificate of Occupancy (CO); the denial of any other permit, license or approval to any developer, owner, lessee, or user of the subject property; the revocation of any other permit, license or approval from any developer, owner, lessee, or user of the subject property; revocation of any concurrency; and/or b. The revocation of the Official Map Amendment, Conditional Use, Requested Use, Development Order Amendment, and/or any other zoning approval; and/or c. A requirement of the development to conform with the standards of the Unified Land Development Code (ULDC) at the time of the finding of non-compliance, or the addition or modification of conditions reasonably related to the failure to comply with existing conditions; and/or d. Referral to code enforcement; and/or e. Imposition of entitlement density or intensity. Staff may be directed by the Executive Director of PZ&B or the Code Enforcement Special Master to schedule a Status Report before the body which approved the Official Zoning Map Amendment, Conditional Use, Requested Use, Development Order Amendment, and/or other zoning approval, in accordance with the provisions of Section 2.E of the ULDC, in response to any flagrant violation and/or continued violation of any condition of approval. (ONGOING: MONITORING - Zoning) ZC 03/03/2011 Page 393

10 EXHIBIT D: DISCLOSURE ZC 03/03/2011 Page 394

11 ZC 03/03/2011 Page 395

12 ZC 03/03/2011 Page 396

13 EXHIBIT E: Applicant s Variance Justification ZC 03/03/2011 Page 397

14 Type II Variance - Seven Standards This proposal meets the following variance standards set forth in the Unified Land Development Code (ULDC) Section 2.D.3.G.2. A response for each variance is provided for each standard below: 1. Special conditions and circumstances exist that are peculiar to the parcel of land, building or structure, that are not applicable to other parcels of land, structures or buildings in the same district. Yes, the property was re-designated under the CL/2 Land Use category in While neighboring properties were included in this County initiated Land Use change, they were of sufficient size to develop using any commercial district allowed under the CL/2 Land Use. This property on the other hand, while previously not limited under its C/2 Land Use and CG Zoning could only comply with the CN District in terms of lot size. This severely limits the allowed development on the site compared to that of its neighbors which have much higher intense Districts of CG and MUPD. 2. Special circumstances and conditions do not result from the actions of the applicant. No, the property owner was not involved in the County initiated Land Use change that made the CG Zoning District non-compliant with the CL/2 Land Use. Regardless of what is developed on the property the owner will need to Rezone the property. Now severely limited in terms of development potential, the owners have very few options in terms of developing the property without the use of variances. Going to the CC District the owners can develop the property in a reasonable manner, while allowing the fewest number of variances required between the CC and IRO options. The CN District is not even considered an option, as the restriction on building size is an additional undue hardship and does not allow for the reasonable development of the parcel as a Fitness Center. 3. Granting the variance shall not confer upon the applicant any special privilege denied by the Plan and this Code to other parcels of land, buildings or structures in the same district. Yes, granting the variance shall not confer upon the applicant any special privilege denied by the Plan and the ULDC to other parcels. In fact, this variance gives this parcel the chance to develop at an equal playing field as the rest of parcels with this District. No other parcel along this corridor has a commercial Zoning less than CG. By being forced to down-zone the parcel to the lowest possible District of CN instead of CC, the County is placing an undue hardship on the parcel. The development pattern of this would be incompatible with the higher development approvals to the east and west, and places square footage restrictions that do not allow the meaningful use of the site for the proposed Fitness Center. 4. Literal interpretation and enforcement of the terms and provisions of this Code would deprive the applicant of rights commonly enjoyed by other parcels of land in the same district and would work an unnecessary and undue hardship. Yes, by making the Zoning District compliant to its Land Use of CL/2, you are essentially down-zoning the property. Going from CG, its current District, to a lower District deprives the parcel of the higher commercial development potential brought upon by the County-initiated Comp Plan change. The next less intense District compliant with the CL/2 Land Use, CC, is defined as: The CC district is to provide a commercial facility of a community nature that services residential neighborhoods within a three to five mile radius, located on a collector or higher classification street. This definition completely fits the community serving need of the proposed Fitness Center. In contrast, the CN District is defined as follows: The CN district is to provide a limited commercial facility of a convenience nature, serving residential neighborhoods within a one-half mile radius, located on a local, collector or arterial street. This District is much more in line with a more convenience type use. The proposed Fitness Center, or frankly any commercial use located at this location, will draw from a much larger radius than ½ mile as listed in the definition. This is a suburban location where users will come from several miles away, especially for a specific type use as this karate school will be. 5. Granting the variance is the minimum variance that will make possible the reasonable use of the parcel of land, building or structure. ZC 03/03/2011 Page 398

15 Yes. The current owners purchased the property in 2010 with the intent of building and operating a karate school which falls under the Fitness Center use as defined by the ULDC. As mentioned previously the lot is being Rezoned to bring it into compliance with its Future Land Use of CL/2. The variance will allow for the Rezone and the use to be in character with the rest of the commercial corridor along Lantana Road. 6. Granting the variance will be consistent with the purposes, goals, objectives, and policies of the Plan and this Code. Yes, granting of the variance will be consistent with the policies of the Comp Plan and ULDC. The 2003 Land Use change is evidence of the fact that this was to be developed consistently with its neighboring properties as CL/2. Commercial Low sites are designed for lower impact, community serving uses. A smaller Fitness Center fits in well with the community in terms of providing low impact commercial uses. As the final property along this corridor to develop (or gain entitlements to develop), it will complete the neighborhood serving corridor that was approved in the Land Use Change in Granting the variance will not be injurious to the area involved or otherwise detrimental to the public welfare. Yes, granting the variance will not be injurious to the area. In fact, the site is already labeled as a commercial parcel, and just needs to be brought into compliance with the current Comp Plan in terms of Zoning. Development of the site as a low impact neighborhood serving commercial use will be beneficial to the community and will be in character with the surrounding commercial uses along Lantana Road. Based on the above justification, the petitioner respectfully requests approval of the Type II Variance for lot size. ZC 03/03/2011 Page 399